Mostafa Ahamed vs The State Of West Bengal & Ors
2021 Latest Caselaw 3154 Cal

    02                     IN THE HIGH COURT AT CALCUTTA
09.06.2021                CONSTITUTIONAL WRIT JURISDICTION
  sb
   Ct23                           APPELLATE SIDE

                                  WPA 2867 of 2020
                                  (Via Video Conference)

                                    Mostafa Ahamed
                                           Vs.
                             The State of West Bengal & Ors.



                          Mr. Sandeep Prosad Shaw,
                          Mr. Anupam Some,
                          Ms. Priyanka Gupta
                                     ... For the petitioner.




                          The advocate for the petitioner says that he has

             served the State respondents in terms of the order dated 3rd

June, 2021. Neither the State respondents nor the private

respondent are present. However, in view of the order I

propose to pass, the matter can be taken up in the absence

of the respondents. The petitioner is, therefor, allowed to

proceed with the matter.

The petitioner claims to be the owner of a landed

property measuring about 2.6 acres of tank in plot No.603,

previously recorded in Khatian No.740 and presently

recorded in L.R. Khatian No.570 and other Khatians vide

Nos. 211/2, 438, 588, 1015 situate at Mouza -Ashokgram,

JL No.164, P.S. Gangarampur, District - Dakshin Dinajpur

(hereinafter referred to as the "said Tank") along with his

brother. The petitioner says that the Pradhan of Asokgram

Panchayat No.11 at one point of time tried to lease out the

said Tank claiming it to be a Government property. The

petitioner filed a suit, being Title Suit No.155 of 1980 before

the Court of the learned Munsif at Balurghat. The said suit

was decreed allowing permanent injunction against the

defendants in the said suit. An appeal, being Title Appeal

No.99 of 1983 was filed against such decree and judgment

by one of the parties to the suit, which, according to the

petitioner, was dismissed by the learned Assistant District

Judge, Balurghat on 2nd August, 1985. Despite such

appellate decree, the dispute regarding the said Tank

persisted which as the petitioner says compelled the

petitioner to file a writ petition, being WP 28696(W) of 2008

before this Court. The said writ petition was disposed of by

an order dated 6th May, 2009 allowing the petitioner to file a

representation before the Block Development Officer and

disposal of such representation by a reasoned order within a

time-frame after affording opportunity of hearing. The Block

Development Officer, Gangarampur, Dakshin Dinajpur,

passed an order on 27th August, 2009. Subsequently,

another writ petition was filed by the petitioner, being WP

19696(W) of 2015, which was disposed of by an order dated

12th April, 2016. In terms of the said order dated 12th April,

2016, the Block Development Officer, Gangarampur

Development Block, Dakshin Dinajpur, passed an order on

5th August, 2016 holding that Asokgram Panchayat under

Gangarampur shall have no right to manage and/or lease

out the tank/pond in question in LR plot No.603, being the

said Tank. The petitioner says that the private respondent,

being the respondent no.4 alleging that the said Tank is a

Government property is trying to interfere with the said Tank

in an attempt to lease out the same. The petitioner had

lodged a complaint with the Superintendent of Police,

Dakshin Dinajpur, being the respondent no.3. The petitioner

says that though the petitioner had requested the complaint

to be treated as an FIR, no FIR has been registered as yet.

No investigation in terms of the complaint has also been

made.

So far as the right in respect of the said Tank is

concerned, the police authorities may not be the proper

authority to adjudicate such right. This adjudication is not

required to be done by police authorities in view of the

previous orders referred to hereinabove. The police

authorities, however, are empowered under section 145 of

the Code of Criminal Procedure, 1973 (in short, Cr.P.C.) to

enquire into a complaint as the incident complained of is

likely to cause a breach of peace concerning the land or

water or the boundaries thereof. When a specific complaint

was made as against the respondent no.4, the police

authorities were duty bound to investigate into the matter

and if any matter of substance as to the petitioner's

allegation was found then the police authorities were

required to take steps in accordance with law as laid down in

section 145 of the Cr.P.C.

The respondent no.2, being the Inspector-in-

Charge, Gangarampur Police Station is directed to enquire

into the complaint made by the petitioner if not already done

and take appropriate steps if the allegations of the petitioner

are found to be correct as made in the complaint dated 6th

February, 2020. The respondent No.2 shall also see that

there is no breach of peace at the locale or in and around the

Tank in question till the investigation is complete and the

said respondent takes subsequent steps as permissible in

law.

Nothing further remains to be adjudicated in the

writ petition and the same is accordingly disposed of without

any order as to costs.

Since I have not called for any affidavits, the

allegations contained in the writ petition are deemed to have

not been admitted by the respondents.

Urgent photostat certified copy of this

order, if applied for, is to be given to the parties upon

compliance with the necessary formalities.

(Arindam Mukherjee, J.)